# Petition for Writ of Certiorari — Mullen v. Fitz Simons & Connell Dredge & Dock Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1471%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1953
- **Citation:** 344 U.S. 933

## Text

a

NYHL G33 7¢E 3a9Vd “ava

~ Ao a a SS

See

— = ——-.. ai

SE eee —_

4OOE NI TIWSILYSA ANNO 39Vvd SIHL

NO. yy ice. Sip zi a

IN THE SUPREME COURT OF TRE UNITED STATES
: OCTOBER TERM, 1952

CHARLES MULLEN,
Petitioner,

-V¥s-

FITZ SIMONS & CONNELL
DREDGE & DOCK CO., a
Corporation,

Respondent,

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE
SEVENTH CIRCUIT, AND BRIEF IN
SUPPORT THEREOF.

IRVING BREAKSTONE
Attorney for Petitioner
140 North Dearborn Street
Chicago 2, Iliinois

~-- oo

SS Seay ape —_

4OOS8 NI Avoltasa GNNOg 39vd SIHL

i, ins abies ai:

1. The deeision of the Court of Appeals in effect holds that the
plaintiff seaman forfeited his right to maintenmee and cure because of
alleged willful 4isobedienee of orders ani Gulpable failure to perforsn
his known duty in the service of the ship, despite the facet that there
is mo evidence in the recoré to support any charge of “wiliful® ais~
obedience or “eulpable® failure on the part ef the seaman Plaintirr,
There are no facts in evidence in the Gage at ber to warrant the appl ica~
tion of that prineiple,

Marren vy, U.S,, 340 U.S, §23-528

ig in favor of the reeovery on the part of the plaintiff in the case at
bar, end the facts in the instant case with reference to the eonduet of
the plaintiff are conclusive that there was no willful disobedience of
orders or culpable failure to perform his known duty. He simply emitted
to close a door in a galley when the ship wes in rough weather, which
brought about his injury.

R FOR 4

ae eon ene etn Bet

OLE i I See ge AE

2. The Court of Appeals in its deeision to the effect that the
Plaintiff should be denied expenses Of @are because the defendant tendered
him admission to the Maritins Hospital, ie in error and Contrary to the
decisions and established authority,

a oe SE ate
e deep (N.8.) 97

3. The Court of Appeals erred in failing to give the plaintire ;
Judgment de nove in Admiralty for $1,606.21 with interest at 7% fron
Beptember 29, 1947,

WHEREFORE, Petitioner respectfully prays that Writ of Cer~
tierari issue to the Court of Appeals for the Seventh Cireuit to the ena
that the record in the appeal styled CHARLES MULLEN, Appellant fe)
OS NI TVOILYSA aNnog Sova SIHL

thie Court for review, ani the judgment of said Court of Appeals
reversed, and the cause remanded with directions to reverse the

judgment of the District Court in toto and to enter judgment in
the amount of $1,606.21 in favor of the plaintiff-petitioner,

CHARLES MULLEN.
RESPECTFULLY SUBMITTED,

TRVING BREAKSTONE
Attorney for Petitioner
140 North Dearborn Street
Chieage 2, Illinois

State 2/2922

AB IO. Yr eee Beer oT

a

NYHL G33 7e 39Vd “ava

Sir ti, ae

4OOS NI “IWSILYSA GNNOg 390vd SIHL

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1952

NO.

CHARLES MULLEN,
Petitioner,
«YG

FITZ SIMONS & CONNELL
DREDGE & DOCK CO., a
corporation,

Respondent,

BRIEF IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

ee ee ee

QPINION OF THE COURT BELOW

The opinion of the Court of Appeale for the Seventh Cir-
cuit is reported in: 198 F. (24) Advance Sheets - Volume 5-
end appears in full in the certified copy of the record in that

REPORT Oe

Court.

STAR Re MADR

TURISDICTION

The jurisdiction of this Court is invoked under Title 28,
United States Code, Seetion 1254 (2). The Court of Appeals hac de-
cided important federal questions of federal law “in a way probably
in ebaflict with applicable decisions of this Court," and in a way
in @eaflict with the decisions of the Court of Appeale for other
Circuits and "has so far departed from the accepted and usual course
of judicial proceedings, or has so far sanctioned such a departure

RAE LED LAER IT EE AIOE Oe

Nin irae BT

by a lower court, as to call for an exercise of this Court's power
of supervision.” (Supreme Court Rule 38 (5) (b).)

- Fe

‘

—

NYHL G33 7g 439Vd Muva

ewe cup oe

OME IVSILYEYSA GNNOG 39vd SIHt

deokhand; that he did not shut the galley door when he saw thet

the tug was going out into the lake in a heavy sea and that his own
negligence was the proximate cause of his injury. This Court has not
found that he was guilty of any “willful disebedience of orders and
culpable failure to perform his known duty in the service of the
ship® as set forth by the District Judge in his memorandua opinion as
the basis for his findings ani the entry of the Decree against the
Plaintiff.

There is no evidenee in the recor to support any charge
of “willful® disobedience or “eulpable*® failure on the part of MULLEN.

This Court in its decision 191 F. (24) 85 appeared to have
adopted this view of the law as to Plaintifr's right to maintenanee and
cure as contended for by the Plaintiff.

The Defendant-respondent on the former Appeal, 191 F. (24) 85
argued that the Plaintiff-petitioner wae not entitled to maintenance and

cure beeause on the evidence, he was guilty of misconduct of the degree
and kind deseribed in the opinion of the United States Supreme Court

in Warren vs. U.S. 340, U.8. $23 and that hie right to maintenance and
cure was forfeited because his conduct came within the exception to the
general rule which entitled him to maintenance and cure. The Court of
Appeals 4id not adopt thet view of the evidenee, but held that he was
entitled to his maintenance ani cure provided he produced evidence show-
ing the amount due him therefor.

We have no quarrel with the statement of the law as set
forth in the opinion of the Court of Appeals, but our position is that
there are no facts in evidence in the case at bar to warrant the appl iea-
tion of that prineiple.

The Plaintiff-respondent ealle the Court's attention te the
following evidense from the record upon which he bases his elaim te
Findings of Fact and Conclusions at Law in his faver on this issue and
Contrary to the Findings and Conclusions of the Court below:

PRR. “EMD ss Maiden

ee

ee as

PS, Se ha Yad OH

i ~~ re
enn |

—sSewrwwa aaa i aaa

The Plaintiff, after his injury, wae treated at Saint

Catherine's Hospital at East Chieago, Indiana and was aiecharged
therefrom on “out-patient” treatments, Octoder 8, 1947. Hospitalisa- —
tion and the physician who treated Plaintiff were furnished ani paid

for by the Defendant. At page 21 and 22 of the record, Plaintirr
testified as follows:

"After taking the etitehes out, I took heat treat-
ment, what they call heat, some machine there or
something. They told me to bathe it in hot water,
at home. After I left the hospital on October 8th,
I went back four or five times later upon the lith
or 12th, the first time; then I had to go out every
other day. The last day I went out there wae the
day after Christmas, December 26th, when I got a re-
lease from Dr. Cole. He wanted me to go to work be-
fore that, so I asked hin, ‘Well, you have got "a give '
me a release of some kind, so I ean go.' 80 he 4
on the 26th, the day after Christmas. }

"I made about three tripe a week, so that would be about !
twelve a month. It cost $5.01 for a complete round trip |
from Chicago to Indiana Harbor, street car fare and all.
After the accident, I tried to go to work the following
April for Great Lakes Dredge & Doek Compeny as a fire-

man. Well, the first —- there was no engineer there,
and I 414 not do any work. I just got paid for it, but
there wae no firing on the firet day. 80, I don't know
what happened. But the second day I came out and tried
to Work, and could not make it. My hand hurt. I could
not pick up a shovel, could not pick up the slide bar,
the hose and stuff we use to clean fires.

RE REO OTE PL I AOC IE BE

Page 24 - "The first time I 7 oa to work, to continue to
work steady was May 17, 1 °

Page 30 "In 1947 and 1948 it cost me $5.00 per day for food and
maintenance or support. No pert of that support or main-

tenance has been paii to me by Fitr Simons Connell Dredge :
& Dock Comprny. '

'
Page 56 "I 414 not work in the winter of 1947-48 because there was
no Gall for me, and I was not able to. ®

The Defendant offered no evidence to refute these facts
testified to by the Plaintirr.

The record Conelusively shows that the Plaintirr made three
(3) trips per week from the City of Chicago to Indiana Harber te

December 26, 1947, a total of thirty-three (33) trips at $5
trip for a total of $165.33.

-01 per
This is hie expense for oure or care.

Bec uct agmmgepes ts as nen RR RRNA RE: eR

NaHtl G33 78 39va Muva

4OOS8 NI TvolLasa GNNOg 39vd SIHL

re ee | .
; The evidence conclusively shows that he was injured on |

September 29, 1947 and was able to work for the first tise on
May 17, 1948 and wae disabled and required to maintain himself fer
a period of 232 daye at $5.00 per day for maintenance, for a total of

$1,160.00.

The Court of Appeals should have made findings of fact
awarding the Plaintiff a recovery for maintenance and cure and pro=
viding by Decree the recovery of interest at 7% upon the same. Inter-

est is commonly allowed on appeal.

Hagerman ve. Moren (1896) 75 F. 97 (CCA 9th)
The Glenoehi}) (1904) 128 F. 963 (D.Dei.)

The Gladiator (1898) 223 F. 381
The Axby (1897) 83 F. 720 (CCA 4th)

The law ae it exists in the United States apart from
treaties and statutes may be described as follows:

It is a general rule of Maritime Law
that a seaman falling sick or injured
while im the service of the ship is
entitled to maintenance and cure te be
supplied by the Ship Owner and Master.

The negligence of the seaman does not
deprive him of this right; nor does he
lose it by a violation of his shipping

Articles which would justify his dis-
charge.

The Court of Appeals takes the position that in reference to
maintenance and cure, “expenses that would have been avoided by use of
the free services of the Maritime Hospitals of the U.8. Public Health
Service cannot be recovered as maintenance and cure. *

We respectfully aubmit that it is in error.

"Statutes establishing Public Health and
Marine Hospitals maintained by the Federal
Government do not repeal or teke away the
seaman's right under the Maritime Law to be
cured at the expense of the ship, but are
auxiliary thereto. The right is incident to
his contract of employment. Aecordingly, a
disabled seaman is not obliged to accept an

7 - 22 «

ei lk

ee ~~.
: eee. = ee as

4HOOEG NI “IWOLLYBA GNNOg 390vd SIHL

an i i
offer of treatment in « Public Service and

Marine Hospital, but may require the vessel
to fulfill ite opligation in respect to care
and medical attention. *

48 Am, Jur, - Shipping - Par. 175
Holt ve, Cummings - 102 Pa. 212, 48
Am. Rep. 199

Anno, 4 - L.A.R. (N.5.) 77

2Ann, Cag, 209

This Court may allow the successful party in the Appeal,
costs in the District Court ag well as Appellate costs.
Tt - B D P
On the basis of the undisputed Affidavit as to said costs
appearing in the record herein, Plaintiff-netitioner is entitled te
total costs in the sum of $280.88 for costs heretofora accrued and
due exelusive of the instant Appeal.

HC.

The evidence in thie Case, clearly establishes all the
allegations of Counte II and III of the Complaint, imposing liability
upon the Defendant-responient for breach of the duties as set forth
therein, all of which requires that the Judgment below should be re-
versed ana judgment ordered in behalf of the Plaintiff-petitioner
in the oun of $165.33 for medical expense and cure; $1,160.00 for
maintenance and $280.°5 for costes ex@lusive of the instant Appeal, or
® total of $1,606.21, together with interest at the rate of 7% per
annus from September 29, 1947 to the date hereof.

The case should be remanded to the Jourt of Appeals with
directions to enter Judgment as aforesaid.

RESPECTFULLY SUBMITTED,

SRA ONLY FONTS

8
: IRVING BREAKSTONE
: Attorney for Plaintiff-petitioner
ee nC ect? NO

riIyep

es NY

rE >
IN THE

apreme. Court of the United States

Ocroser Term, 1952

* a io ee Ee coe on OR
/ ft x Suprenm> Court, U,

No. 411

:
CHARLES MULLEN,
Petitioner,

vs.

4 ITZ SIMONS & CONNELL DREDGE & DOCK COo.,
of a corporation,

es Nana

ON_PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

iti Linh ag ais

| __ BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

EDWARD B. HAYES,
135 S. La Salle Street,
Chicago, Illinois,
Attorney for Respondent.

The Scheffer Press, Inc.—ANdover 3-6850

SOA he
7 D i
Val?

——_ Sage RO ae nS INES CER TET ONS

INDEX

PAGE
GNI cicicsicniceiessdslpbiaictcaniagiibahilt cate eect Sot Rac i
ION ORO siscoscncstsnsicrisiinnicinttinseapcamessidiisbanispiendiniis nssiaas 1
BI I RD ERT RN A OTE 4
AIDIIIOINN: :ssnassisictineaniiicihdibiaa ete oN oe 24
Crrations.
CASES:
Alabama Power Co. vy. Ickes, 302 US. 464, 474
CUIINP B.'aiahensnssesnciabninssbaishatecblnntceanasbstanigsueste niece cc 9,12
Bailey v. City of New York, 153 F. 2d 427 (CA 2,
BOD Sniacecca ase en ee 21
Barlow v. Pan Atlantic S.S. Corp., 101 F. 2d 697,
GSIPUE - :denibaabsicapnedcbicebnelabieimbse babi linia lta aac aC 10, 17

The Ben Flint, 3 Fed. Cas. 183, 195 (D.C. Wis.).... 17
Calmar S. S. Corp. vy. Taylor, 303 U.S 525, 531

SURIUND ; . acibscecististaipaianbdiinldaeaildaaiiniiestiasiatant dala a al 9, 21
The Carib-Prince, 170 U.S. 655, 658 (1898)....0....... 9
Chandler vy. The Annie Buckman, 5 Fed. Case No.

SE Sats. Wee ec iitteasaistadasenttbietsehentantdeacencs 17
The Lroquots, 194 U.S, 240, 247-248 (1904)... 12
Just v. Chambers, 312 U.S. 383, 384 (1941)... 9, 12

Marshall v. Lnternational Mercantile Co., 39 F. 2d

ee CE Oe Be iicitatsinenssinieinicanetotietinion 21
The Mexican, 78 F. 2d 819 (1935).........ccccccccsssosesesees 17
Mullen v. Fitz Simons & Connell Dredge & Dock

Co., 199 F. 2d 557, 5G0-5G61 (1952)........ccccccossccess 15, 21

Mullen vy. Fitz Simons & Connell Dredge & Dock
Co., 191 F. 2d 82 (CA 7, 1951); cert. denied 342
ie ee eae eae 2

Tawada y. U. S., 162 F. 2d 615 (CA 9, 1937).......... 17

ii
PAGE
Towson v. Moore, 173 U.S. 17, 24 ES 13
U. S. v. Loyola, 161 F. 2d 126, 127-128 (CA 9,
1947)
Warren v. United States, 340 US. 523, 528
(1951) 10, 17
Ruts:
Supreme Court Rules, Rule 38(2) 9

aa

IN THE

Supreme Court of the United States

Octroser Term, 1952

No. 411

CHARLES MULLEN,
Petitioner,
vs.

FITZ SIMONS & CONNELL DREDGE & DOCK CO.,,

a corporation,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

OPINION BELOW.

The opinion of the court below is reported in 199 F. 2d
557 (1952). The opinion of the district court is not reported
but is set out at page 9 of the transcript prepared for the
appeal below.

A previous appeal followed trial of the cause and judg-
ment for respondent by directed verdict on all counts of
petitioner’s complaint, including the counts for maintenance
and cure at issue here. The Court of Appeals sustained the
directed verdict for respondent on petitioner’s claim for

eo

Sa

rio:

Ray Bite ey,

- fn

oe sad Bak

ee iNT Ely

hi ald DPA ah Pen

ase

Beh eS

Jones Act indemnity, holding that injury was caused, no
by negligence of respondent, but by his own failure to per
form his known duty as deckhand. Mullen v. Fitz Simon
€ Connell Dredge & Dock Co., 191 F. 2d 82 (CA 7, 1951)
cert. den. 342 U.S. 888 (1951).

On the second and third counts, for maintenance (sub
sistence during disability) and cure (medical care an
attention), the Court of Appeals stated that “no proof ap
pears of any amount owing plaintiff for eure and main
tenance” but it remanded these counts to the trial cour
for the making of findings of fact and conclusions of law o1
the admiralty side, where alone there was jurisdiction 0
these admiralty counts in the absence of diversity of citi
zenship between the parties.? This Court denied certiorar
to the present petitioner. (342 U. S. $88 (1951)

On remand after argument and submission of briefs
the trial court again, this time as an admiralty tribunal

1 The Court of Appeals held:

“We believe that the trial court properly directed a verdict o1
count one of the complaint, because viewing the evidence in the ligh
most favorable to plaintiff, together with all reasonable inference:
and deductions which may be drawn therefrom, Giliberto v. Yellov
Cab Co., 7 Cir., 177 F. 2d 237; Reno Sales Co. Inc. v. Pritchar
Industries, Inc., 7 Cir., 177 F. 2d 279, it appears that his injury wa
caused solely by his failure to perform his known duty as a deck
hand. He did not shut the galley door, when he saw that the tus
was going out into the lake in a heavy sea. The evidence convincing]
shows that his own negligence was the proximate cause of hi
i ‘a

Final judgment has now been entered on Count I for Jones Act indem
nity and petitioner has submitted thereto; no question involving tha
count was raised in this second appeal, and none is raised by the presen
petition.

2 By its direction of a verdict in defendant’s favor on Counts 2 and 3
the trial court had found that on all the evidence most favorable ti
plaintiff there was no basis for recovery of maintenance and cure. Ih
remanding, the Court of Appeals did not express disapproval (indee
it stated that no proof of any amount owing for cure and maintenance
was presented) but merely found that the court, sitting as an admiralty)
tribunal, should enter whatever finding the evidence might warrant
giving petitioner the pe gpm to offer further evidence, and re
manded in order that that procedure could be carried out. Petitione:
offered no further evidence. [Finding No. 14]

ORCI ee

LEO BERLE PIE

—_—

: ae =

held that no right to maintenance and cure had been made
out. This second decision adverse to petitioner’s allegations
of claim for maintenance and cure was made upon the same
record as before since petitioner did not offer any further
evidence. No additional evidence was offered nor did peti-
tioner point to any new evidence, although as the findings
show (Finding No. 14) he was challenged to do so.

On the de novo appeal below, the Court of Appeals con-
curred in the admiralty findings and decision of the ad-
miralty trier, and it is upon those concurrent findings of
fact of the courts below that petitioner seeks certiorari here
to review the rejection of the admiralty claim to main-
tenance and cure.

eT ee ee

ye ae

wpreeaes

$i 1

ee

iia ites si Ata tba Wid ah omatcata nad siee 5 1c

a

ARGUMENT.

The matter involved here is an admiralty claim for
maintenance (subsistence during disability) and cure (med-
ical care and attention). N othing else was asserted before
the Court of Appeals upon the last appeal, upon which
this petition for certiorari is predicated. Nothing else is
asserted here.

The total amount claimed by petitioner to be in issue,
aside from interest and costs, is $1,325.33. (Petition, p.
13).

The legal reasons why his claim was denied below are:

1. Maintenance and cure is not awarded when the in-
jury in question is caused solely by the seaman’s own
wilful disobedience of orders and culpable failure to per-
form his known duty in the service of the ship.

2. Petitioner’s hospital and medical bills were paid
for him, and no proof appeared of any amount owing
petitioner for maintenance and cure.

The concurrent findings of the courts below read as fol-
lows (Tr. 15 et seq.):

‘Plaintiff is a seaman with thirty-three years ex-
perience on the Great Lakes. On September 22, 1947,
he was employed as an extra by defendant, working
as a deckhand on the tug boat John J. Roche, which
was engaged in towing loaded seows from Indiana
Harbor into Lake Michigan for dumping. The tug
was about 84 feet long overall, 20 feet wide, 1214 feet
in depth, of which 14 inches was above the water line.
Above the deck’s level was a deck house and forward

ao 5 —

a pilot house. The deck house had several doors
which, when closed, kept out the lake water. Among
his duties, the deckhand was supposed to close these
doors in rough weather. In the middle of the deck
house, on the starboard side, was a fire hole door,
in addition to the door to the pilot house. Next, astern,
was an engine room door, and farthest back, at the
end of the deck house, was a galley door. Inside this
door, steps led down to the galley below the deck, a
hand rail was provided for use on these steps. The
galley door was about three feet wide and five feet
high. It was made of steel and swung outward, with
hinges on the side toward the front of the tug. A
hook attached to the deck house wall could be hooked
over the top of this door to keep it open.

‘2. A captain, engineer, two firemen, and deck-
hand, as required by the steamboat inspectors, made
up the crew. Plaintiff was the deckhand. The boat
was regularly inspected by the United States Steam-
boat inspectors, as required by law.

‘*3. Handling mooring lines, helping the fireman in
dumping ashes from the boiler room, and closing
hatches, when necessary to keep the tug from taking
water in rough weather, were among the duties of the
plaintiff as deckhand.

‘*4. The tug was docked in Indiana Harbor, an
artificial harbor, formed by breakwaters facing the
lake with a gap, through which vessels pass; near the
center of the Harbor. At the gap of this inner break-
water, a green light is fixed. A second breakwater
projects directly into the lake proper at the end of
which is fixed a white light. Going toward the lake,
after passing the gap in the inner breakwater, marked
with the green light, a ship is in the lake proper.
Passing beyond the breakwater with the white light,
puts the vessel farther out into the lake.

“5. After arriving for work at the Indiana Harbor
dock on the morning of September 29, 1947, plaintiff
saw that the lake was heavy and rough. From the

ae ye

dock, plaintiff could see the water spray striking
top of the catwalk astride the breakwater enclos
the harbor. Within the harbor the water was chop
The number of scows that can be towed on a gi
day depends on the weather. The condition of

weather can best be determined from an examinat
out in the lake itself. This is called ‘‘going out
look at the weather”. Plaintiff had gone out to |
at the weather on tug boats many times before.

‘6. A civil engineer employed by defendant, ¢
a scowman, who rode loaded scows, accompanied —
crew of the Roche when the captain gave the order
go out and look at the weather. When the whis
signal was given, plaintiff cast off his mooring lin
one of the firemen cast off the other line, and the t
proceeded toward the breakwater gap which afford
access to the lake. A standing order aboard the Roc
required the deckhand to close up the tug in hea
weather. Plaintiff was told about the standing ord
and also testified it was his job as deckhand to
that. He further testified that the tug should ha
been closed up in weather such as he could see fre
the dock before he started out into the lake. T
captain testified that he told plaintiff personally th
standing orders required him to close up in hea’
weather. There was no contradiction to the testimo:
given by the captain as to the standing order.

“7, After passing the gap in the breakwater, t!
Roche entered the lake and ran into a heavy sea, whi
impeded its speed. The decks of the Roche we
awash from waves of water, At times, the waves h
the breakwater causing a spray of water forty to fif
feet high. Plaintiff could see that the tug was goir
beyond the end of the breakwater projecting into tl
lake. As the tug proceeded, plaintiff said he ws
dumping ashes into the lake and when it became tc
rough to remain on deck he headed inside by way «
the galley door, that being the last door astern o
the starboard side. A wave of water followed him i

—_ = =.

pax, Sole

as he stood on the first or second step leading down-
ward to the galley, with his hand between the- door
jamb and the hinged side of the galley door. While
in this position the door closed, pinching his right
hand. No one on board witnessed the accident. A
hand rail was provided for holding on, located on the
steps directly in front of plaintiff as he stood there
facing forward. Plaintiff said he never used the hand
rail and he did not use it on this occasion. Plaintiff
said the accident happened as the tug was turning
around, stating that he jumped into the galley stair-
way before the tug began to turn.

“8. Viewing the evidence in the light most

favorable to plaintiff, together with all reasonable
inferences and deductions that may be drawn there-
from, it appears that his injury was caused solely by
his failure to perform his known duty as a deckhand.
He did not shut the galley door when he saw the tug
was going out into the lake in a heavy sea.

; ‘“*9. Besides the uncontradicted standing order,
5 the captain told Mullen on the very occasion to close
4 up the tug.

‘10. While Mullen said he was dumping ashes, the
two firemen, one of whom had no connection with
defendant at the time of trial or for some years there-
tofore, who would have known if ashes were being
dumped, and with one of whom Mullen claimed he
was working, testified that no ashes were dumped
that day. It does not appear from the weight of sub-

q stantial, credible evidence what Mullen was doing

; out on deck. The ashes were in the fire hole, which

i had its own door.

**11. When plaintiff was employed he did not live
on the tug, but at home. He was an extra worker and

} 1 All of the findings set forth were made by the courts below sitting
in ae Those which precede this footnote were made by the
| admiralty trier and the Court of Appeals on uncontradicted evidence
(and had been made in another connection in disposing of the Jones Act
_ indemnity claim, which is no longer before the Court, not having been
' involved in the appeal from whose result this petition for certiorari

arises.)

Pret

%
3
e
=
4
3

twas) ose

PELL RAE NE RSS EDS INNS ANG the aA ai) id ee nah eb tipbon ek

=

his employment was uncertain. On the day of the
aecident, September 29, 1947, the tug Roche was
working out of Indiana Harbor and plaintiff was hos-
pitalized there. Tug work is seasonal. The plaintiff
testified, referring to the work season, that this was
late, that the job could end at any time, and if it did
he would probably be out of work for quite a while,
Ife left the hospital, he says, on or about October 8,
1947, returning to his home in Chicago, Illinois,
where the services of the Marine Hospital of the
United States Public Health Service were available
to him for cure and maintenance without charge, as a
seaman. After leaving the hospital plaintiff volun-
tarily elected to visit Indiana Harbor, Indiana, from
time to time for treatment, consisting of the applica-
tion of heat, instead of availing himself of the Chicago
Marine Hospital, whose facilities were mentioned to
him by defendant in writing for anything he might
require as cure and maintenance. It does not appear
that the heat treatments would have prevented plain-
tiff’s employment, if there had been any employment
for him.

“12. Plaintiff says that at some time before De-
cember 26, 1947, his doctor wanted him to go back to
work because it would be good for his hand, but plain-
tiff refused to do so, insisting on some kind of a re-
lease which his doctor gave him on December 26, 1947.
Plaintiff did not work during this off-season, there
being no ‘‘call” for him. He did work as a deckhand
throughout the next season, and the season following,
at increased wages, but again he did not work in the
following off-season, there being no call for him.

“13. Plaintiff’s hospital and medical bills have
been paid for him, and no proof appears of any
amount owing plaintiff for maintenance and cure.

“14. Since the mandate plaintiff has been asked
to state his position and has been challenged by de-
fendant on brief to indicate any new evidence he might
desire to offer, or any new evidence not merely cumu-

_——
ve ren

lative or not available by proper diligence at the trial.
Plaintiff has not specified any new evidence.”

The ‘‘questions specifically brought forward by the pe-
tition for writ of certiorari’’* are three in number.

Two of the three are met by the rule of this Court in
admiralty and equity that it will not overhaul concurrent
factual determinations of the courts below. Just v. Cham-
bers, 312 U. S. 383, 384 (1941); Alabama Power Co. v.
Uckes, 302 U. S. 464, 474 (1937); The Carib-Prince, 170
U.S. 655, 658 (1898). The third is settled by a great body
of authority in the federal courts and by the decisions of
this Court (Calmar S. S. Corp. vy. Taylor, 303 U. S. 523,
531 (1938), no authority whatever to the contrary in this
Court or any lower federal court being cited by petitioner.

The questions brought forward are:

1. Petitioner asks:

‘‘Whether the ‘Plaintiff forfeited his right to med-
ical cure and maintenance at the expense of the De-
fendant-appellee by reason of evidence in the ease
substantiating that the injuries to the Plaintiff-appel-
lant were ‘caused solely by the seaman’s own willful
disobedience of orders and culpable failure to perform
his known duty in the service of the ship.’ ’’ (Petition,

p. 4)

In the supporting brief petitioner makes it plain that
he is not challenging the rule of law involved in the
question. On the contrary he says flatly that he agrees
with the rule applied by the courts below:

‘“We have no quarrel with the statement of the

law as set forth in the opinion of the Court of Ap-
peals, but our position is that there are no facts

2“Only questions specifically brought forward by the petition for
writ of certiorari will be considered”. Supreme Court Rules, Rule 38(2).

At WS RO: > Bah RT Masi

4
j
Ec
5
3
a
a
3
g
ze
=.
:
:
4
dl

MRR SAR PERO ne

— po

in evidence in the case at bar to warrant the appli-
cation of that principle.” (Br. 20).°

The correctness of the legal rule (Warren v. United
States, 340 U.S. 523, 528 (1951); Barlow v. Pan Atlantic
S. 8. Corp., 101 F. 2d 697, 698 (CA 2, 1939)) is accord-
ingly not here in question. It is purely a question whether
there was some substantial evidence to show wilful dis-
obedience of orders and culpable failure to perform known
duty to ship. Both courts below found that the proof on
that point was plain—even on the undisputed evidence. We
have quoted heretofore in full the findings in which the
courts below concurred. Among others, concurrent find-
ings addressed to this point are:

“5, After arriving for work at the Indiana Harbor
dock on the morning of September 29, 1947, plaintiff
saw that the lake was heavy and rough. From the
dock, plaintiff could see the water spray striking the
top of the catwalk astride the breakwater enclosing
the harbor. Within the harbor the water was choppy.
The number of scows that can be towed on a given
day depends on the weather. The condition of the
weather can best be determined from an examination
out in the lake itself. This is called ‘going out to
look at the weather”. Plaintiff had gone out to look
at the weather on tug boats many times before.

“6. A civil engineer employed by defendant, and
a scowman, who rode loaded scows, accompanied the
crew of the Roche when the captain gave the order
to go out and look at the weather. When the whistle
signal was given, plaintiff cast off his mooring lines,
one of the firemen cast off the other line, and the
tug proceeded toward the breakwater gap which af-

3 Before the Court of Appeals the petitioner took the same position.

He stated:

“We have no quarrel with the statement of law as set forth in
the opinion of the District Judge (see Appendix) but our position
is that there are not facts in evidence in the case at bar to warrant
the application of that principle.”

PERIL ON ne I TOR Aa Se MMA NE I SET A NT

—]] —

forded access to the lake. A standing order aboard
the Roche required the deckhand to close up the tug
in heavy weather. Plaintiff was told about the stand.
ing order, and also testified it was his job as deck-
hand to do that. He further testified that the tug
should have been closed up in weather such as he
could see from the dock before he started out into
the lake. The captain testified that he told waintiff
personally that standing orders required him to close
up in heavy weather. There was no contradiction to
the testimony given by the captain as to the standing
order.

‘“*7, After passing the gap in the breakwater, the
Roche entered the lake and ran into a heavy sea,
which impeded its speed. The decks of the Roche
were awash from waves of water. At times, the waves
hit the breakwater causing a spray of water forty
to fifty feet high. Plaintiff could see that the tug
was going beyond the end of the breakwater pro-
jecting into the lake. As the tug proceeded, plaintiff
said he was dumping ashes into the lake and when
it became too rough to remain on deck he headed in-
side by way of the galley door, that being then the
last door astern on the starboard side. A wave of
water followed him in as he stood on the first or
second step leading downward to the galley, with
his hand between the door jamb and the hinged side
of the galley door. While in this position the door
closed, pinching his right hand. No one on board wit-
nessed the accident. A hand rail was provided for
holding on, located on the steps directly in front
of plaintiff as he stood there facing forward. Plain-
tiff said he never used the hand rail and he did not
use it on this occasion. Plaintiff said the accident
happened as the tug was turning around, stating that
he jumped into the galley stairway before the tug
began to turn.

‘**8. Viewing the evidence in the light most favor-
able to plaintiff, together with all reasonable infer-

— =

ences and deductions that may be drawn therefrom, it
appears that his injury was caused solely by his
failure to perform his known duty as a deckhand. He
did not shut the galley door when he saw the tug was
going out into the lake in a heavy sea.

‘**9. Besides the uncontradicted standing order, the
captain told Mullen on the very occasion to close up
the tug.’’

We do not understand that this Court will overhaul
the concurrent determinations of fact by the District Court
and Court of Appeals below. The authorities in this
Court are numerous and familiar:

‘*As the decision of the District Court was unani-
mously affirmed by the Cireuit Court of Appeals, we
do not think there is any such preponderance of evi-
dence as would justify us in disturbing their con-
clusions.”’

The Iroquois, 194 U. S. 240, 247-248 (1904).

‘*These findings were made, after hearing, by the
district judge upon undisputed or conflicting evidence.
The findings were not questioned by the court below;
and since they are not without substantial support
in the evidence, we accept them here as unassailable.’

Alabama Power Co. vy. Ickes, 302 U. 8. 464, 474
(1937) (An equity matter).

“Tn support of the judgment of the Cireuit Court
of Appeals, respondent asks us to review the evidence
with respect to the cause of claimant's injuries and
the breach of duty by the shipowner, contending that
the evidence was insufficient to support the findings.
Applying the well-established rule we accept the con-
current findings of the courts below us on these mat-
ters (citing auth.) and we confine our attention to
the question of the survival of the causes of action.”

Just v. Chambers, 312 U. S. 383, 384 (1941) (An
admiralty matter).

This Court’s doctrine as to the foree of coneurrent
findings of fact below, originating in admiralty and later

———— ee a eee ue, ge er ee Be

=

extended to equity (Towson vy. Moore, 173 U. 8. 17, 24
(1899) ), is particularly applicable to admiralty situations,
where it is often remarked that the subject matter makes
it peculiarly difficult for a reviewing court to substitute
itself on matters of fact for an experienced district judge
who heard and saw the witnesses.

If the question whether the facts support wilful dis-
obedience and culpable misconduct were one on which
this Court’s function were that of a trier of fact, we
should argue as we did by brief below, where our posi-
tion was sustained:

‘The trial court found that plaintiff was guilty of
‘wilful disobedience of orders and culpable failure
to perform his known duty in the service of the ship.’
That, he held, under the applicable rules of law, dis-
qualified Mullen from recovering maintenance and
cure—quite apart from the facts, also found, that
Mullen had failed to prove any amount due him for
maintenance and cure. The trial judge said:

“*Tt is my conclusion that maintenance and
eure, allowed to seamen injured in the service of
the ship regardless of the employer's negligence
or their own want of ordinary care, is not
awarded when the injury in question is caused
solely by the seaman’s own wilful disobedience
of orders and culpable failure to perform his
known duty in the service of the ship.’ (Tr. 13)

Plaintiff concedes, as indeed the authorities he cites
compel him to do, that this statement of law by the
trial judge is correct. (Br. 10) ‘But,’ he states, ‘our
position is that there are not facts in evidence in the
ease at bar to warrant the application of that prin-
ciple.’ (Br. 10) ‘There is no evidence in the record,’
he says, ‘to support any charge of “wilful” disohe-
dience or ‘‘eulpable” failure on the part of Mullen.’

‘Plaintiff closes his eves to the detailed recital
of the evidence contained in this Court’s opinion and

a

mandate on the earlier appeal in which this Court
held that plaintiff’s ‘injury was caused solely by his
failure to perform his known duty as a deckhand.’
That recital of the evidence spelled out in detail, on
uncontradicted evidence (and allowing Mullen every
reasonable inference), that Mullen was guilty of eulp-
able misconduct, indiseretion, wilful disobedience of
orders, and disregard of his seaman’s duties. The
Court of Appeals’ dispassionate statement is erystal
clear. Contrary to his orders and his known duty,
plaintiff let this small tug with only 14 inches above
the water line, go out with a deckhouse door wide
open into a ‘heavy sea’ that was throwing the spray
40 feet in the air at the breakwater, seeing the situa-
tion, knowing, as he testified, that the tug should have
been closed up, knowing it was his duty to shut the
deckhouse door, and let it continue with that door
wide open in that sea, that slowed the vessel down,
with her deck awash, all in violation of his standing
orders, until he was driven in by a wave that ‘filled
the door.’ What plaintiff did would shock any mind,
to say nothing of a seaman of thirty-three years ex-
perience who admits he knew better. Plaintiff saw
the situation, he said the door should have been shut
in such weather as he could see before he left the
dock, he knew his duty was to shut the door, he
knew his orders required him to do that, he knew
that if he did not shut the door the heavy sea that
was dashing spray 40 feet over the breakwater would
come into the vessel with its low, 14-inch freeboard—
and he did not shut the door—‘* * © j¢ appears that
his injury was caused solely by his failure to per-
form his known duty as a deckhand. He did not shut
the galley door, when he saw the tug was going out
into the lake in a heavy sea.’ (Our emphasis) (Mullen
v. Fitz Simons & Connell Dredge & Dock Co., supra,
84.)”

— 15 —

The decision of the court below upon the question of
fact presented was clear and direct:

“‘The plaintiff-appellant, in the case now under
consideration, was not entitled to maintenance and
eure from the defendant-appellee because the court
found that his injury resulted from ‘his’ wilful dis-
obedience of orders and eulpable failure to perform
his known duty in the service of the ship. (Auth. cit.)

* . *

**All the findings of fact made by the admiralty
court are supported by substantial evidence.”
Mullen ¥. Fitz Simons & Connell Dredge & Dock
Co., 199 F. 2d 557, 560 (1952).

The question petitioner raises here is whether these
faets present any substantial evidence at all. That is the
only quesiion on that point argued by the supporting
brief. (Brief, p. 20).

The trouble with the argument is that it overlooks
the two court rule, to say nothing of the mass of evidence
in the record.

Both courts below said Mullen knew the vessel ought
to be closed up in heavy weather like that he could see
from the dock and that it was his duty to do so. Both
courts pointed out that Mullen himself so testified.

Both courts found there was a standing order on the
vessel requiring the deckhand to close up in heavy

* For exam Tr.
mg. Is that a good idea to have waves coming in tugboats? What
is your view of that as a seaman?
A. It is a bad idea.

. By fasteni Qa - down. That is the deckhand’s job.
And y in weather like you could ra 7 were going

Q.

A.

Q. Whose job is that?

A

a, * into before A ou ever started out from the
t

ra

—16—

; weather. The captain so testified (Tr. 154) and no one
denied it.

Both courts found that a specific order to close up had
been given on the very occasion. The captain so testified
on cross-examination (Tr. 165) and Mullen denied it (Tr.

182).° The advantage of the trier passing upon such con-
; flicts in admiralty matters is frequently commented upon.

Both courts found that petitioner did not close the
; deckhouse door—neither before the vessel started out into
‘ the lake nor at any time while the vessel pressed for-
ward in the heavy waves, with her decks awash, for a
distance of a quarter of a mile past the last breakwater
protection.

Disregard of known duty (reinforced here by standing
orders) under circumstances recognized as calling for its
performance, is nearly the height of wilful misconduct.
‘‘He further testified that the tug should have been
closed up in weather such as he could see from the dock
before he started out into the lake * * * (191 F. (2d)
on 84). To close it up was his “known duty” (191 F,
(2d) on 84). To fail to do one’s known duty in cireum-
stances actually recognized as calling for its perform.
ance, with the consequence that the water was bound to
come into the low lying vessel in the heavy sea was a
reckless disregard of the safety of himself, his vessel,
and his shipmates. That it was in direct violation of
standing orders underscores the fact. A man who, in vio-
lation of his orders and known duty, acts in such disre-
gard of the safety of his vessel, is guilty of something
more than mere want of ‘‘ordinary eare”. This is not
the ordinary negligence in the course of faithful service

® References are to the record on the earlier appeal, which has been
incorporated in toto in the present record,

a

oe 17 a

to the ship, that admiralty will overlook. It is the con-
duct ‘‘prejudicial to the ship’s service” that the admir-
alty will not condone, and which, when it results in the
seaman’s injury, forfeits maintenance and cure. (The
Ben Flint, 3 Fed. Cas. 183, 195 (D.C. Wis.); Barlow y.
Pan Atlantic S. 8. Corp., 101 F. 2d 697, 698 (CA 2, 1939) ;
Warren v United States, 340 U. 8. 52: , 928 (1951)).

Petitioner would have it that to be disqualifying from
maintenance and cure, the seaman’s conduct must be sug-
gestive of ‘‘moral turpitude”. No court ever said so.
On the contrary, it is not the moral sanction, but the
‘prejudice of the ship’s service and discipline’ that
raises the disqualification. The Ben Flint, 3 Fed. Cas.
183, 195 (D.C. Wis.). It prevents recovery by a drunken
seaman who promotes fights with shipmates aboard ship
as in The Mexican, 78 F. (2d) 819 (1935), or by a seaman
whose incapacity from venereal disease leaves a ship
shorthanded, as in Chandler vy. The Annie Buckman, 5
Fed. Case No. 2591A (D.C.); or by a seaman who holds
himself out as fit when he has a disability disease, as
in Tawada vy. U. S., 162 F. (2d) 615 (CA 9, 1937). Sea-
men have heen said to be more prone to some types of
culpable misconduct; violation of their known duty is
not their common failing. But violation of orders and
known duty certainly is culpable misconduct, and culp-
able misconduct affecting the ship’s service is the test,
not moral turpitude. Barlow v. Pan Atlantic 8. 8. Co.,
101 F. (2d) 697, 698, and cas. cit.; Warren y. United
States, 340 U.S. 528, 528 (1951).

The courts below found on these matters upon un-
contradicted evidence that Mullen’s job was to close up the
vessel; that he saw from the dock that she should be
closed up in such weather; that the orders were to close

. as
© ecdubt abla zadapi oii ss ~~ eh bts

a ee

— 18 —

up in such weather; and that he ignored his known duty
to his vessel, his shipmates and himself, and disobeyed
his orders, which was the sole cause of the accident.
Petitioner makes no attempt to contradict these matters
now, as, indeed, he could not.

Once such facts are found, as they were found by the
two courts below, in admiralty, there is an end to any
pretense that petitioner is entitled to eure and main-
tenance at the expense of the employer whom he has
disobeyed, to the jeopardy of himself, his shipmates and
his vessel.

The concurrent findings of the courts below spell out
disobedience of orders and disregard of duty in the
presence of circumstances seen by petitioner to call for
performance of those orders and of that known duty,
as the sole cause of the accident, leaving the low-lying
vessel wide open when she was going out into a high,
rolling sea that threw the spray 40 feet in the air, so that
waves could **fill the door” and come into the vessel.
That is culpable, wilful, gross miseonduet, or nothing is.
Disobedience by seamen of reasonable shipboard orders
is highly culpable; disobedience of this order, so necessary
to the safety of the vessel, especially in the face of these
conditions of weather, was gross misconduct. Such dis-
regard of orders and of ‘‘known duty” when, as he him-
self says, plaintiff saw the conditions and knew they
called for performance of the duty and the order, was
wilful disobedience. No admiralty court ever yet re-
warded such wilful disobedience with maintenance and
cure. Petitioner has not cited and cannot find any case
allowing cure and maintenance under such cireumstances
of culpable misbehavior. Under the rule that the seaman
cannot recover maintenance and cure when his injury

——

= a

due solely to his own culpable misconduct, there could
possibly be any such case,

\ll these facts were spelled out by the Court of Ap-
Is on the first appeal on the uncontradicted evidence
the purpose of passing on the common law count
lich is no longer in dispute, and was not involved on
present appeal or in the present petition) ; they were
nd by the district court sitting in admiralty on the
‘itime claim for maintenance and cure—on the un-
Tadicted evidence. In addition the district court as
: of fact in admiralty and the Court of Appeals on the
cove appeal concurred in the further finding that not
Was there a standing order (as the uncontradicted
ence showed) but also that the captain told petitioner
he very occasion to close up the vessel. (Finding No.

ith such testimony indelibly upon the record, peti-
‘r’s argument that there is no Support for the con-
ent findings must fail. And upon such findings, the
is clear—as petitioner concedes—that the guilty sea-
is not entitled to recover maintenance and cure.’
The second alleged ‘question presented” mentioned
e petiton is:

‘Whether an injured seaman is deprived of his
ight to expenses of medical care and cure because
e is required to avoid such expense by use of the
ree services of the Marine Hospitals of the United
‘tates Public Health Service, and that the availability

pondent has nevertheless borne the costs of Mullen’s medical
id hospital expenses. Mullen testified these cost him nothing. (Tr.

be

eo.

— 20—

of this service prevents his recovery for maintenan
as well as cure.’’* (Petition, p. 5)

The ‘‘expenses of medical care and cure” to which pet
tioner refers are travel expenses of $165.33 for trips to
¢clinie at Indiana Harbor, Indiana, from petitioner’s hon
in Chieago.

The concurrent courts he@y found:

“Il * * * Lie left the hospital, he Says, On

about October 8, 1947, returning to his home in Ch
cago, Illinois, where the services of the Marine Hos
pital of the United States Publie Health Service wer
available to him for cure and maintenance withov
charge, as a seaman. After leaving the hospital plain
tiff voluntarily elected to visit Indiana Harbor, In
diana, from time to time for treatment, consisting 0
the application of heat, instead of availing himsel
of the Chicago Marine Hospital, whose facilities wer
mentioned to him by defendant in writing for any
thing he might require as cure and maintenance, |
does not appear that the heat treatments would hav
prevented plaintiffs ciployment, if there had beer
any employment for him.” (Finding No. 11, supra)
* * *

13. Plaintiff’s hospital and medical bills hav
been paid for hii, and no proof appears of any
amount owing plaintiff for maintenance and cure.”
(Finding No. 13, supra)

‘Under the section “Reasons Relied on for the Allowance of the
Writ,” petitioner rephrases the oint. He says:

“2. The Court of Appeals in its decision to the effect that the
Plaintiff should be denied expenses of cure because the Defendant
tendered him admission to the Maritime Hospital, is in error and
contrary to the decisions and established authority.

As thus stated, the question is moot. Petitioner himself testified that he
paid nothing for the medical or hospitial expenses arising from his acci-
dent (Tr. 80) as the concurrent courts below also found:

“Plaintiff’s hospital and medical bills have been paid for him,
and no proof appears of any amount owing plaintiff for main-
tenance and cure.”

(Finding No. 13, supra)

aa Te

The Court of Appeals concluded below:

* * * Since the recofd discloses that medical and
hospital charges for treatinent were actually fur-
nished him, and since he could have had any addi-
tional treatment required without costs through the
facilities of Public Health Service, we are constrained
to hold that the trial court sitting as a tribunal in
admiralty properly dismissed his action for mainte-
nance and cure.’’

Mullen v. Fitz Simons & Connell Dredge & Dock

Co., 199 F. 2d 557, 560-561 (1952).

This point has been ruled on many times by the lower
federal courts: e.g. United States v. Loyola, 161 F. 2d 126,
127-128 (CA 9, 1947); Bailey v. City of New York, 153 F.
2d 427 (CA 2, 1946); Marshall v. International Mercantile
Marine Co., 39 F. 2d 551 (CA 2, 1930). And it was put
to rest in accordance with the doctrine so held for many
years in many federal district courts and Courts of Ap-
peal by the decision of the Court in Calmar S. S. Corp. v.
Taylor, 303 U.S. 525 (1938) :

s@ * * Moreover, courts take cognizance of the
marine hospital service where seamen may be treated
at minimum expense, in some cases without expense,
and they limit recovery to the expense of such main-
tenance and cure as is not at the disposal of the sea-

man through recourse to that service. (Cit. cases).
* * #99

Petitioner cites no conflicting federal authority to the
contrary.®

8 The holding of the Court of Appeals against petitioner was alterna-
tive. Even had the lower court been willing to disregard the holding of
this Court and the other federal courts, and allow petitioner to prevail
on this point, his wilful disobedience of orders and culpable failure to
perform his duty as found by the concurrent courts and his failure of
proof would have defeated him.

Since petitioner lived in Chicago, Illinois, where free medical service
was available to him, his attempt to charge respondent with traveling
expenses to another state (Finding No. 11, supra) might be thought to
be peculiarly subject to the principle that a man cannot recover as dam-
ages expenses that he might have avoided.

[oe ee) Vee

-

ior ne oy ih shales Pdi ee

ASRS Sealy ata she F

Pear a ee I

enw

ee
So oN

5
» 9
s
Y

—_—

3. Petitioner’s third alleged “Question Presented”
is:

“Whether or not there is evidence in the record
sufficient to enable the Court to fix the amounts due
the Plaintiff-appeliant for iaintenance and cure,”
(Petition, p. 4)

Both courts below found the record lacked proof to
show what, if anything, was due the petitioner for mainte-
nance after the payments made ex gratia by the respond.
ent.

The coneurrent finding was:

“T3. Plaintiff's hespital and medical bills have
heen paid for him, and no proof appears of any
amount owing plaintiff for maintenance and cure.”

Additional findings further spell out specifically the
inadequacy of the proof.

In view of the authorities in this Court that concur-
rent findings below will not he overhauled here (supra,
p. 12), petitioner’s argument here would have to be that
these facts present no substantial evidence to support the
findings.

But petitioner himself made the record and it is his
own uncontradicted testimony which spells out the fail-
ure of proof and provides the basis for each finding made
by the concurrent courts below.

It was petitioner’s own testimony that all his hospital
and medical expenses were paid for him (Tr, 80: Finding
No. 13).

It was petitioner’s own testimony that tug work was
seasonal and that this was a late season job which could
end at any time; he was forced to admit that during this

4
4,

x

off-season, (1947-1948) although lic was on call, there was
no call for ini and again during the next oil-season (1948-
1949) he received no call for any employment. Petitioner’s
arguinentative statement on brief that after his injury
on September 29, 1947, ‘the was able to work for the first
time on May 17, 1948, and was disabled and required to
maintain hinuself for a period of 252 days at $5.00 per day
** * while it avoids saying so specifically, is meant to
be understood as meaning that he was required to main-
tain himself because he was disabled during that time,
but that was not what his testimony said.

Again, it was petitioner’s own testimony that following
his discharge from the hospital (where with the medical
eare provided hint by respondent, he also received. liis
maintenance) his doctor wanted him to go back to work
sometime (his proof does not show when) before his out-
patient treatment was completed, beeause it would he good
for his hand. Rights to maintenance and cure, if any,
cease when a seaman is pronounced fit for duty.

Mor aueht that appears, plaintiff would have heen ac-
tually benefited from work as svon as his in-patient treat-
ment, that he might have had free in the Chicago Marine
Hospital, would have ended.

Given an opportunity to supplement the record which
had led the Court of Appeals on the previous appeal to
say ‘tno proof appears of any amount owing the plaintiff
for cure and imaintenance’’, petitioner was not able, or did
not choose, to offer anything.

He cannot reeover maintenance when he was not work-
ing, contrary to his doctor’s advice that he should work,
end when what the hand needed was work, as he admits
his treating physician (whom he did not eall) told him.
He could not recover maintenance while he was not work-

3
:
4
of
‘
:
4
*§
x

peine at

nae a

ing for the reason that there was no work for him during
the off-season.

The record is devoid of any proof of any amount owing
petitioner for maintenance or cure. That is what. the
concurrent courts found below, on petitioner’s own un-
contradicted testimony:

‘“Plaintiff’s hospital and medical bills have been
paid for him, and no proof appears of any amount
owing plaintiff for maintenance and cure.” (Finding
No. 13, supra)

The findings then, which the petitioner would have the
Court overhaul, despite its often expressed rule, are con-
current findings of the courts below based upon uncon-
tradicted testimony of the petitioner himself, which he
could not or did not choose to augment when given the
opportunity and challenged to do so.

CONCLUSION.

Two of the questions brought forward seek reexamina-
tion of concurrent findings of fact of the two courts be-
low and a third seeks review of a legal principle on which
decisions are not in conflict. No basis for issuance of the
writ of certiorari is presented. The petition should, there-
fore, be denied.

Respectfully submitted,

Epwarp B. Hayes,
Attorney for Respondent.

= ft
cay
A, Sani,

yt

re

wus <=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1471%3A1. Public record. Not legal advice.